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Tuesday, June 25, 2013

Accessing a Deceased Relative's Digital Accounts -- A Response

I ran across an article on makeuseof.com entitled, "How to Access A Deceased Relative's Digital Accounts." I found the article interesting because it failed to raise any issues at all involving the interest of a deceased person's estate and heirs in the online digital accounts discussed. Following the advice given in the article, without proper authority from the deceased person's estates, could result in serious legal liability. All in all, the article was accurate as far as it went, but entirely misleading.

As genealogists, we may be in a unique position to have an interest in a deceased online legacy. But it is extremely important that our interest does not lead us to become involved in legal action and family fights and controversy. There are some important principles here completely ignored by the popularly written article and commonly spread throughout the Internet.

The basic principle is this: when a person dies, everything the deceased person owns, either real or personal property including any online files or assets, passes to his or her estate. This is automatic and without exception in every state in the United States. This legal fact has nothing at all to do with the court action we call probate. Whether or not a person's estate needs to be probated through the court system is determined by the laws of the jurisdiction where the person dies and/or the jurisdiction where the property is located. Whether or not a probate is needed may also be determined by the value of the assets of the estate. Some very small value estates do not have to be probated in some jurisdictions.

There are also methods to transfer ownership of both real and personal property to trusts, partnerships, joint ownership with survivorship, limited liability companies and other entities before a person dies that may reduce the need and may eliminate the need for court probate of the person's property.

In today's world, as I have written before, there is a huge gap between the reality of online digital assets and the provisions of state laws in the United States establishing rules and procedures for handling these types of assets.

So despite the advice given in the article, the tips given do NOT start you out in the right direction. First and foremost before access any deceased person's online accounts, you must determine if you have the legal right to do so. If you have any question at all about this issue, you need to consult competent legal authority. The online accounts are definitely considered an asset of the deceased person's estate. If you do not have the legal right or authority to access those accounts you could be liable for damages in an action brought by the estate or the rightful heirs or both. Jumping in and accessing a deceased online records without the proper legal authority to do so, may even be considered theft or conversion.

But this leaves a very real problem. What if you are the only person with access to the accounts and know that something needs to be done? Unfortunately, the answers you get from lawyers will vary greatly depending on the background and experience of the professional asked. But aside from the legal issues involved, there are real family issues that also must be addressed. Just as it is common for heirs to fight over physical assets, it is inevitable that there will also be disagreements over the online assets of a deceased person.

There is one sure way to avoid any kind of controversy upon your own death: don't own anything when you die. Of course, that is difficult and unworkable, but the principle is clear: transfer all of the title to your property to a trust or other entity before you die. Then your trustee has a clear legal right manage, access and dispose of any and all your property. Make sure your trustee has all the information her or she needs to access your online accounts and to a great extent, the problem is solved. It might also be a good idea, as genealogists, to appoint trustees that have a sensitivity to the need to preserve records and continue on with the deceased person's work.

This entire issue bears attention. Meanwhile, be aware that this a developing area of the law and there may be reasonable, yet conflicting opinions among various legal practitioners.